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Anne Hendricks Bass v. Director of Physical Planning

In January and February of 2016 the claimant attempted to gain access to information relating to a resort development on Nevis including the copies of a site plan, a drainage plan and an Environmental Impact Assessment. She alleged that the Nevis Department of Physical Planning acted in contravention of its functions and had denied her copies of documents relating to the application to which she was entitled. Although her agent was allowed to see the plans she was not allowed to take pictures or copies of the documents comprising that application. The Director of Physical Planning stated that in the exercise of his discretion although not mandated by law, the public was sometimes allowed to see the plans and documents of current projects but not to take copies as this was not in the Ordinance. Furthermore, the application for permission to develop land was not within the public domain and the public does not have a right of access to the documents. The claimant requested an order of certiorari to quash the decisions of the respondent denying access to information recorded in the Department of Physical Planning register related to the development and an order of mandamus to compel the respondents to provide access thereto and take copies of such information.

Destacados

[30] In order to determine this first Issue the Court must seek to interpret Section 47 of the said Ordinance. In so doing, the Court must ensure that it ascertains what the intention of the legislature was, at the time of the enactment. The Court usually has regard to the Literal rule of Interpretation which requires, in the interpretation or construction of an Act of Parliament the acceptance of words which are precise and unambiguous. See: Lennox Linton vs A.G of Antigua and Barbuda-See: Sussex Peerage case. However, where the literal interpretation of the statutory provision leads to an absurdity or yields unjust results, the Courts have from time to time utilised the rules of Interpretation. The Mischief or the Golden rule of Interpretation enables the Court to ascertain the meaning of words in order to avoid repugnance or absurdity. See: Grey vs Pearson. It is the general principle of Statutory Interpretation that every clause or Act must be construed in the context of, and with reference to the other clauses or sections of that statute. The Court must always seek to determine the Legislative intention.
[31] Justice Hariprashard-Charles in the case of Bebo Investments Ltd. vs The Financial Secretary observed that the dominant purpose in construing a statute is to ascertain the intention of the Legislature as expressed in the statute, considering it as a whole, and in its context. The intention is primarily to be sought in the words used in the statute itself, which must, if they are plain and unambiguous be applied, as they stand however strongly it may be suspected that the result does not represent the real intention of Parliament.
[32] In Pinner vs Everett4Lord Reid stated this principle in the following terms; “In determining the meaning of any word or phrase in a statute, the first question is what is the natural or ordinary meaning of that word of phrase in its context in the statute. It is only when the meaning leads to some result which cannot reasonably be supposed to have been the intention of the Legislature, that it is proper to look for some other permissible meaning of the word or phrase.”
[35] Lord Scarman in the said case of Stock vs Frank Jones (Tipton Ltd.)stated; “If the words used by Parliament are plain, there is no room for the “anomalies” test, unless the consequences are so absurd that, without going outside the statute, one can see that Parliament must have made a drafting mistake. If words have been inadvertently used, it is legitimate for the Court to substitute what is apt to avoid the intention of the Legislature being defeated. This is an acceptable exception to the general rule that plain language excludes a consideration of anomalies (i.e.) mischievous or absurd consequences. If a study of a statute as a whole leads inexorably to the conclusion that Parliament has erred in its choice of words, the Courts can and must eliminate the error by Interpretation; but mere “manifest absurdity” is not enough; it must be an error of commission or omission which in its context defeats the intention of the Act.”
[57] I am of the respectful view that to interpret the Nevis Physical Planning and Development Control Ordinance in the way that learned Counsel for the Respondents suggest would defeat the purposes of Section 47 of the said Ordinance, and import absurdity into the objectives of the Ordinance that is contrary to its expressed language.
[60] In my respectful view it could not be in the interests of Justice to give the section such a rigid interpretation which would possibly yield to absurdity and which would be contrary to the intention of the Legislature. It is pellucidly clear to the Court that a purposive approach as envisaged by Section 3 (2) of the Ordinance must be given to the interpretation of Section 47. I am fortified in this view, since there is nothing in the scheme of the legislation that will support the Court giving such a narrow and restrictive Interpretation. In summary, the Court is of the considered view that the case at Bar requires the application of the Golden rule of Interpretation. If this Court was to apply the austere interpretation to the section that learned counsel for the Respondents has submitted it would yield results that are repugnant to both the intention of the Parliament and to common sense.
[61] Consequently and for the sake of completeness and emphasis, I reiterate that Section 47 of the Nevis Physical Planning and Development Ordinance must be construed in the context of and with reference to the other clauses or sections of the Ordinance. On that basis I am persuaded that the meaning and intention of the Legislature was to allow public access to the Register containing all the Physical plans and documentation on which an application for permission to develop land was made. Further the section contemplated that access to the said documents were to be made free of charge and to take copies of such information on payment of the prescribed fee.
[66] After reviewing the evidence of the Director of Physical Planning and his subordinate staff. I have no doubt that the actions of the Director of Physical Planning severely diminished the value of the access that was given to the public by the Legislature to view and take copies of the Information on any application for permission to develop land.

[67] In the circumstances I accept the submissions of learned Counsel Mr. Garth Wilkin and adopt a purposive approach which seeks to give effect to the true purpose of the legislation and further hold that the Director of Physical Planning’s decision to restrict public access to information regarding Applications for development purposes is unlawful and illegal and in breach of Section 47 of the Nevis Physical Planning and Development Control Ordinance. Mr. Williams has acted ultra vires and reached a conclusion on an erroneous basis and interpretation of the Law. 

Decisión

The Court found that the Director of Physical Planning—by disallowing complete access to information recorded in the Department of Physical Planning register—acted beyond his legal power and authority, as vested by the Ordinance. By exercising his own discretion in not allowing the members of the public to view and take copies of documents forming an application for development of land, the Director was acting unlawfully. The Court also declared that Claimant was to be granted, during ordinary business hours, access to all information in the registers required to be kept by the Defendant and compelled the respondent to provide access to the claimant or any of her agents to all information related to the development and to take copies on payment of the prescribed fee.

Fecha de la sentencia

25/01/2017

Órgano resolutor

Eastern Caribbean Supreme Court, High Court of Justice (Civil)